[CCWG-ACCT] Implementation flaw in Mission section

Fri Apr 8 18:56:13 UTC 2016

I agree that this is an important clarification that we need to make for the proposal to be implemented properly.

Thanks,
Robin

> On Apr 8, 2016, at 11:31 AM, Mueller, Milton L <milton at gatech.edu> wrote:
> 
> I agree with Malcolm's analysis of the situation and support modifying the new bylaws to make it clear that the prohibition on regulating content is a broader Mission limitation that would encompass any means, not just the RAA and RA.
> 
> --MM
> 
>> -----Original Message-----
>> From: accountability-cross-community-bounces at icann.org
>> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
>> Malcolm Hutty
>> Sent: Friday, April 8, 2016 7:29 AM
>> To: Accountability Cross Community <accountability-cross-
>> community at icann.org>
>> Subject: [CCWG-ACCT] Implementation flaw in Mission section
>> 
>> 
>> I have found a discrepancy between CCWG Final Report and the
>> implementation of the draft Bylaws in the Mission section.
>> 
>> The Report approved by the Chartering Organisations says:
>> 
>> "* Clarify that ICANN’s Mission does not include the regulation of services
>> that use the Domain Name System or the regulation of the content these
>> services carry or provide." (paragraph 134)
>> 
>> The Draft Bylaws implements this as follows:
>> "*  ICANN shall not use its contracts with registries and registrars to impose
>> terms and conditions that exceed the scope of ICANN’s Mission on services
>> that use the Internet’s unique identifiers or the content that such services
>> carry or provide." (Article I Section 1.1 (c))
>> 
>> 
>> Firstly, this draft bylaw would pick on only one means by which ICANN might
>> seek to regulate content (through the RA or RAA contracts), and prohibits
>> that. There is no such limitation in the CCWG Report: our Report prohibits any
>> attempt to regulate content by ICANN, whether through the RA/RAA
>> contracts or by any other means.
>> 
>> Certainly, the RA/RAA contract is the most likely means by which ICANN
>> might seek to regulate content and services. However, if ICANN manages to
>> come up with some other means (including means that cannot now be
>> imagined) then a full implementation of the CCWG Report would cover that
>> too.
>> 
>> This is a clear and objective discrepancy.
>> 
>> Secondly, the CCWG Report expresses this limitation as an exclusion from
>> the Mission. That was quite deliberate, and significant. We never expressed
>> this section as a bare prohibition on some action, it was always considered to
>> be essential that it was a Mission limitation.
>> 
>> This aspect of the Report's proposal is not reflected in the draft bylaw at all.
>> That is also clear discrepancy.
>> 
>> The significance of this is that a Mission limitation has a broader scope.
>> Excluding regulation of content from the Mission means any action aimed at
>> regulating content can be challenged, including actions that (if done for some
>> legitimate purpose) would be entirely OK. By contrast, a Bylaw that merely
>> prohibits a certain class of action is weaker, because it says it's OK for ICANN
>> to regulate content if it can find some way of doing so within its permitted
>> powers. That's simply not consistent with the Report approved by the
>> Chartering Organisations.
>> 
>> Finally, in the future there may arise some disagreement as to whether a
>> specific activity constitutes "regulation", in particular in marginal cases.
>> Before we adopted the Report, our lawyers advised us not to seek to tightly
>> define this in every particular, but to allow precedent to develop as cases
>> arise. We accepted that advice. The implementation team should therefore
>> avoid seeking to resolve that deliberate ambiguity in favour of the narrowest
>> possible definition of regulation: again, that's not consistent with the Report.
>> 
>> I therefore propose we transmit the following request to the
>> implementation team.
>> 
>> "Article I Section 1.1(c) implements paragraph 134 of the CCWG Report
>> (prohibition of regulation of content) as a prohibition use of its contracts with
>> registries and registrars to regulate content. This does not fully implement
>> our Report. Please ensure that ICANN is prohibited from regulating content
>> through any mechanism, not only through registry and registrar contracts.
>> Furthermore, please exclude express this as an exclusion from the Mission,
>> not merely a bare prohibition on certain actions, so that activities that would
>> otherwise be permitted to ICANN can be challenged if they are designed to
>> achieve this prohibited purpose."
>> 
>> 
>> I hesitate to offer alternative wording: the lawyers may wish to come up with
>> their own, and we should let them. But I will offer these observations and a
>> brief suggestion.
>> 
>> 1. I understand that the lawyers wished to avoid use of the word regulation.
>> Fine.
>> 2. When moving away from the word regulation, they also moved away from
>> describing a class of activity (regulation) to a specific action (using X contract
>> in Y way). I think this is where they went wrong. This in itself limits the scope
>> of the restriction.
>> 3. Sticking as closely as possible to the text of the Report that Chartering
>> Organisations have approved would seem advisable. So if they want to avoid
>> the word regulation, look for some synonym.
>> 
>> Thus compare our Report:
>> "Clarify that ICANN’s Mission does not include the regulation of services that
>> use the Domain Name System or the regulation of the content these services
>> carry or provide."
>> 
>> with the implementation team's draft bylaw
>> 
>> "ICANN shall not use its contracts with registries and registrars to impose
>> terms and conditions that exceed the scope of ICANN’s Mission on services
>> that use the Internet’s unique identifiers or the content that such services
>> carry or provide."
>> 
>> and my alternative suggestion for this Bylaw
>> 
>> "ICANN's Mission does not include seeking to constrain or impose
>> requirements upon the services the use the Domain Name System, nor
>> seeking to constrain the content that those services carry or provide".
>> 
>> That would follow the Report as closely as possible, preserve the restriction
>> as a limit on ICANN's Mission as intended, and still achieve the lawyers' goal
>> of avoiding the word "regulate".
>> 
>> 
>> Kind Regards,
>> 
>> Malcolm.
>> 
>> --
>>            Malcolm Hutty | tel: +44 20 7645 3523
>>   Head of Public Affairs | Read the LINX Public Affairs blog  London Internet
>> Exchange | http://publicaffairs.linx.net/
>> 
>>                 London Internet Exchange Ltd
>>       Monument Place, 24 Monument Street, London EC3R 8AJ
>> 
>>         Company Registered in England No. 3137929
>>       Trinity Court, Trinity Street, Peterborough PE1 1DA
>> 
>> 
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